To restore India as a liberal democratic nation, it will require more than a mere conduct of regular, supposedly free and fair, elections. We will need to shift the goalposts of our attentions to the fundamental tenets that make a democracy

It is disappointing, and even condemnable, that Penguin India capitulated to pressure from the Hindu far right in deciding to pulp all remaining copies of Wendy Doniger’s book The Hindus: An Alternative History. Penguin’s claims that Indian law — particularly Section 295A of the Indian Penal Code — makes it “difficult for any Indian publisher to uphold international standards of free expression without deliberately placing itself outside the law,” is only partially correct. The law on the subject is often onerous, and the courts’ interpretation of it is frequently inconsistent making the battle for free speech not only a difficult one, but also impossible to predict. Yet, by all reasonable accounts, Ms Doniger’s book, even if a most conservative reading of the law were employed, would not have been injuncted from publication. What’s more, the chances of Penguin and the author facing prosecution under Section 295A were distant and implausible. The publisher’s reasons for settling, therefore, appear, at best, insincere.

Individual’s right and larger society

But, read together with, among other incidents, Bloomsbury India’s decision this past January to withdraw copies of The Descent of Air India, after a complaint for defamation filed by Union Minister Mr. Praful Patel, Penguin’s choice foretells a dangerous future: one in which publishers are unwilling to fight the law’s evils. It seems even the supposed vanguards of free speech are losing faith in the state that we live in — a democracy which suffers from an ingrained illegitimacy, where a person’s right to free speech is limited by the majority’s perceived levels of tolerance. To restore India as a liberal democratic nation, it will require more than a mere conduct of regular, supposedly free and fair, elections. We will need to shift the goalposts of our attentions to the fundamental tenets that make a democracy; our political debate must subsume the philosophy of rights.

It is easy enough to begin any discussion on this matter with the Constitution of India as anchor, for subject to certain limitations it grants a right to freedom of speech and expression. But, we would do well to set aside the document for a moment, and think about what rights a democracy, properly understood, must guarantee. Our tendency, unfortunately, is to often think of democracy as a form of majoritarianism, where the will of the greatest number ought to always prevail; we, therefore, seek to balance an individual’s right with the supposed interests of the larger society. If restricting certain speech would make the majority of us happy, then such societal happiness, it is argued, would constitute good reason for restricting such speech. But this model for framing the purport of our moral rights, as the legal philosopher Ronald Dworkin, among others, argued, is fundamentally flawed. It does not comprehend what democracy, which at its heart is an interpretive concept, really means.

If democracy were to be a truly legitimate form of government, it must contain certain inherent value; and since it is difficult to argue that majoritarianism has any such value over and above its ability to institutionalise the larger goals of a legitimate government, we must reject any definition of democracy that rests purely on the rule of the majority. In other words, democracy cannot be considered an end by itself, but must represent a means to attain justice. In order to be genuinely participatory, democracy must entail more than just a commitment to elections; it must treat certain fundamental rights as distinct and incapable of being transgressed purely on the caprice of the majority.

Our greatest failing as a nation is to allow whimsical decisions of the majority to override the most fundamental moral rights that we enjoy as citizens. When the Indian Constitution says, as it does in Article 19(1)(a), that citizens have a right to freedom of speech and expression, it is memorialising a particular moral right. The limitations that it places on this right through Article 19(2) by allowing the State to make reasonable restrictions in the interests, among other things, of public order, decency or morality, are therefore to be invoked only when compelling reason is presented. The question is: what constitutes compelling reason?

The grounds that the Constitution of India provides in Article 19(2), as its text says, ought to be reasonable. And what is reasonable is to be tested not on the threshold of majoritarian will, but on larger, scrupulous standards. For example, it would be reasonable to constrain speech if it is absolutely apparent that such speech would incite the committing of an offence. Such a test was, in fact, devised by the U.S. Supreme Court in the famous Brandenburg v. Ohio case: it is only speech that incites “imminent lawless action,” the court held, which is constitutionally unprotected.

Extending American law to the Indian context is often frowned upon, especially in the context of free speech, given that the U.S. Constitution contains no equivalent of Article 19(2). But it is important to bear in mind that both the First Amendment of the U.S. Constitution (which for many decades was thought only to be a bar against prior restraint of speech) and Article 19(1)(a) of the Indian Constitution are abstract expositions of the same moral principle. The restrictions that Article 19(2) imposes are, therefore, to be interpreted on the touchstone of the same moral guidelines. It is no doubt true that according free speech an absolute status, as in America, can give rise to a number of problems, where the inherent value of speech is lost. For example, the U.S. Supreme Court, seemingly with a view to uphold the First Amendment, allows big corporations to spend unlimited funds on political advertising, thereby treating companies on a par with real people. Free speech must unquestionably partake more than the ability of the wealthy to speak, and the state has an important role to play in achieving this goal. But the restrictions that the Indian government often places on speech have little to do with such concerns of equality.

On the contrary, speech is limited in the supposed interest of the majority on a utilitarian assumption that such restriction benefits the interests of the larger society. Where the impact of a certain speech is uncertain, the benefit of doubt must be accorded to the speaker; any divergent, utilitarian argument would run counter to the theory of rights. Unfortunately, the Indian Supreme Court — and concomitantly the courts below it — allows our right to freedom of speech to wither at the first expression of an objection, where violence is implausible let alone being imminent.

This is not to suggest that the Supreme Court has never upheld the right to free speech. There have been plenty of instances where the court has overturned bans on books, movies and other forms of expressions. If Penguin had indeed lost in the trial court, it is reasonable to presume that the higher judiciary would have overturned any injunction. But, collectively, the Supreme Court’s jurisprudence in allowing speech to thrive is so poor as to make the prospect of restraining prior governmental action or more principled decisions from the lower judiciary an abandoned dream. The court seems to lack the philosophical bent of mind to consider certain rights as inviolable, as superior to the impulses of the majority.

Justifying totalitarian power

Take, for example, its decision in 2007 in Sri Baragur Ramachandrappa and others v. State of Karnataka and others. Here, the State government had issued a notification banning Dharmakaarana, a Kannada novel by Dr. P.V. Narayana on grounds that certain paragraphs in the book were objectionable, purportedly probing the character of Akkanagamma, the elder sister of the 12th century saint, Basaveshwara. The Supreme Court, contrary to questioning the government’s legitimacy in banning the book on dubious grounds that it hurt the sentiments of the “Veerashaivas,” when there was no threat of any violence, struck a dagger into the heart of free expression in India. What’s more, inexplicably, the court suggested that the onus to dislodge and rebut the government’s opinion that the offending publication was offensive lay on the novelist. This was a case of the Supreme Court justifying a totalitarian power at the hands of the state at the cost of our most fundamental rights. Regrettably, the decision is no aberration, but is symptomatic of the general approach of the apex court. That the decision represents the law of the land was made clearer when the Bombay High Court, in 2010, relied on the decision to uphold a ban on a book, Islam: A Concept of Political World Invasion …. Here, the court was unequivocal in holding that there needs to exist no clear and present danger to justify a ban on speech. It suffices to show, the court wrote, that “the language of the writing is of a nature calculated to promote feelings of enmity or hatred.”

The Supreme Court in framing its jurisprudence on free speech from the perspective of restrictions as opposed to the inviolability of the right has ensured that laws that are blatantly anti-democratic are allowed to stand. In the process, speech, which, in fact, incites offence, goes unpunished, while speech, which is found offensive by a given majority, is constrained on ambiguous grounds. What the court has effectively done is to say the government is entitled to bar speech when it believes that such constraints would benefit the community as a whole. These developments threaten not merely liberty, but democracy too. It is, perhaps, time we took our rights seriously.

Democracy has degenerated into a means whereby a handful of people get all the power and privileges.

from:
Rajeswar

Posted on: Mar 2, 2014 at 09:34 IST

The apex court has rightfully injuncted the publication as there is a seemingly ulterior motive behind this story rather than it being a piece of art.Why, time and again ,does there arise the need for the artists and authors, to target any religion, to put forth their artistic capability . Do they lack a topic to display their calibre? The question arises is there is a willful tendency to hurt others beliefs and sentiments? Or is it just another cheap publicity and money spinning gimmick on the pretext of "freedom of speech"?

from:
Tanushree Goswami

Posted on: Mar 2, 2014 at 00:45 IST

The miraculous unity that binds this nation is continuously derided by suppressing the freedom of speech. It is imperative to increase the tolerance level of the nation as a whole and uphold the notion of righteousness and freedom than of majoritarianism.

from:
Ritwik Singh

Posted on: Mar 1, 2014 at 00:07 IST

One of the commenters has commented about Indonesia as being an example of a tolerant, secular society. But it has its own, bigger problems. Atheism is viewed with huge stigma, and there has been increasing intolerance by way of punishing atheists under Islamic blasphemy laws.

from:
Deepan

Posted on: Feb 28, 2014 at 22:37 IST

If you are advocation Free Speech - then it has to be free of all encumbrances. YOu cannot have Free speech with concessions for muslims. Anyone should be free to say what they want, write what they want, draw or depict what they want such as Muhammad's head or face. Muslims have to learn not to look at read those articles if it is hurtful to them- but they cannot say that people should not write or depict what they want. That is Free speech- Till such time articles such as this will have no meaning

from:
smrita

Posted on: Feb 28, 2014 at 22:22 IST

Read an article in some other news paper - "Kate Perry cleans up her act - blasphemous video edited following outrage". Personally, I am happy it happened.

Wonder what our thinkers are thinking? Did they miss it? Don't see anybody jumping and shouting Wolf! Wolf!. Have they not yet got permission?

from:
Keshavan

Posted on: Feb 28, 2014 at 21:52 IST

@Shankar : Which world are you living in ? Minorities are regularly harassed and prosecuted in Indonesia - please do some basic research on the internet and you will get tons of evidence. Also does Indonesia provide reservation to Hindus ? Do they allow Hindus to have their own personal laws ? Do they pay for their pilgrimage ?

The truth is - India is the only country in the world, that goes out of the way to woo the minorities, especially Muslims.

from:
Arun Subbu

Posted on: Feb 28, 2014 at 21:32 IST

There should be reasonable balance between Freedom of speech and Right to Privacy and Respecting feelings of others. We need to know how the book is damaging the feelings of Hindus, if reasonable issue is not there defenitely we should rethink.

from:
Rakesh Aity

Posted on: Feb 28, 2014 at 20:06 IST

provocative videos and written books , expression & opinions using free medias and book publishers, getting banned due to blasphemy law and relating to planned attacks of extremist is completely out of context. Absolutely,no the case of the publishers with drawing.

from:
Khurnana

Posted on: Feb 28, 2014 at 18:22 IST

American laws may be good, but the way Youtube continued to carry a video offensive to Muslims, even when it was causing unrest in so many countries, finally leading to killing of US Ambassador to Libya is hardly worth emulating. A temporary taking down of content till passions cooled would have been the right course. We can not go from one extreme to other.Certain material is useful only for scholarly consumption, where scholars can debate one another. There should be a way to rate that content for restricted view, the way it is done with films where a warning may be given that it may offend one's sensibilities or may contain controversial or matter of debatable validity.

from:
Shreekanth Prabhu

Posted on: Feb 28, 2014 at 17:12 IST

Perhaps Mr. Balakrishnan has not lived in an autocratic / totalitarian state. Development without inclusiveness is of no use. In the totalitarian states, few people decide who the beneficiaries of the development should be. China is famous for its sweat shops. Only a person affected by a sweat shop can decide whether this sort of a development is required. Conceding the fact that China has grown, when will it ever allow its people to talk?

from:
Ravi

Posted on: Feb 28, 2014 at 17:11 IST

It is unfortunate that the author fails to realize that articles 295A and 298 are nothing if not anti-blasphemy laws, and as such, are quite obvious impediments to free-speech, especially of the critical kind. I'm appalled that my country has not implemented a version of the First Amendment, which is arguably one of the greatest achievements of democracy. Of course we must compare ourselves to America, and the right to free-speech is nothing without its essential component- the right to offend. The American constitution restricts free-speech only if it DIRECTLY incites violence, and that is the way it should be. Doniger's book, which at worst can be described as opinionated, was accused of inciting violence and religious hatred. The truth, no how matter how shameful, must be admitted. India has no protection against religious bigotry and censure.

from:
Saahil

Posted on: Feb 28, 2014 at 16:02 IST

The Author argues that supreme court in these matters usually negates due to overriding status in right to freedom of free speech of the States.Nevertheless, considering the research work of the scholarly writer in universal accepted languages that is subject of majority population religion in many states is worthy a try to at least stop pulping the existing books. However, the publishers ceasing any furthering, may be due to utilitarian assumptions and spending money in the geopolitical religious legality of other countries is foregone opportunity in other evolving subjects - jurisprudence in India, and it is for the same reasons that other countries law is least applicable in India.
Further,the author stating that the constitution, the Anchor, not based on the majority and the democracy, but the fundamental essences that these states have exercised against It in some form or other and doesn't fully get practiced or understood,encourages the legal community to take forward this case.

from:
Lakshmi

Posted on: Feb 28, 2014 at 15:41 IST

We have the usual range of commenters here citing all kinds of nonsense to justify hatemongering against Islam (one fact for you people to ponder - the world's largest Muslim nation, Indonesia, is secular with a large Hindu minority, and it is larger than all the countries you usually cite, which have been made into dictatorships by the United States (not because they are Muslim). The points in the article are valid - Muslims in India are indeed a disadvantaged community facing intense discrimination.

from:
Shankar

Posted on: Feb 28, 2014 at 15:11 IST

While discussing the issue of the Kannada book Dharmakaaranaa, the author resents the fact the Court banned the book even when there was 'no threat of any violence'. Is it the author's contention that a violent group can be appeased by conceding to their demands on issues of banning books on grounds of hurt religious sentiments while a more pacifist group should bear the cross for not being 'violent enough' to justify similar ban? How does such an argument square with the rest of the author's argument that democracy is not simply a majoritarian rule? In fact the term 'majoritarian' in Indian context connotes Hindus and when it comes to banning of books on religious grounds, the courts, the governments et al have simply not gone by any such 'majoritarian will'. They have generally banned all such books which were deemed to cause unrest in society, irrespective of any religion. The use of the term 'majoritarian' in this context is therefore unwarranted, unfortunate and misleading.

from:
Subramanyam Sridharan

Posted on: Feb 28, 2014 at 14:41 IST

There are as many threats from vocal/violent minorities. Majority/minority should not matter. Justice, fair-play and adherence to law should matter. If law needs to be liberal it should be done. Why not enact Uniform Civil Code ? Is it not high time we move away from castes and communities, to become a modern and liberal state ? Illegal temples, mosques, statues that block metro work, to every violent and vocal minority state bows down. In fact it is the majority that is under threat, as there is a vested interest to keep it divided. Even to ask for legitimate rights such as valuing heritage, protection to life and liberty(Kashmiri Pandits), protection from terrorism(Temple attacks) is considered sacrilege. All religions have evil cultural practices. Westerners always divided and ruled us and we are perpetuating it.

from:
Shreekanth Prabhu

Posted on: Feb 28, 2014 at 14:26 IST

Does Right to Free Speech override other democratic liberal values like Rigtht to Equality ? Why only the Majority community is expected to be accomodative to all sorts of slander and vilification in the name of Free Speech while a certain so called minority community gets away with Arson and what not for something that happened else where in the world?

from:
Krishna

Posted on: Feb 28, 2014 at 14:17 IST

"First Amendment of the U.S. Constitution (which for many decades was thought only to be a bar against prior restraint of speech) and Article 19(1)(a) of the Indian Constitution are abstract expositions of the same moral principle. The restrictions that Article 19(2) imposes are, therefore, to be interpreted on the touchstone of the same moral guidelines. "

What sort of convoluted logic is this ?

from:
Krishna

Posted on: Feb 28, 2014 at 14:15 IST

@Arya

Should we set up these people who react strongly to anything critical or "offensive" as our role model?

While discussing the issue of the Kannada book Dharmakaaranaa, the author resents the fact the Court banned the book even when there was 'no threat of any violence'. Is it the author's contention that a violent group can be appeased by conceding to their demands on issues of banning books on grounds of hurt religious sentiments while a more pacifist group should bear the cross for not being 'violent enough' to justify similar ban? How does such an argument square with the rest of the author's argument that democracy is not simply a majoritarian rule? In fact the term 'majoritarian' in Indian context connotes Hindus and when it comes to banning of books on religious grounds, the courts, the governments et al have simply not gone by any such 'majoritarian will'. They have generally banned all such books which were deemed to cause unrest in society, irrespective of any religion. The use of the term 'majoritarian' in this context is therefore unwarranted, unfortunate and misleading

from:
Subramanyam Sridharan

Posted on: Feb 28, 2014 at 13:47 IST

whenever anyth abusive/offensive regarding Native Indian Culture/Civilization is raised, and if protester or law of the land resist it, so-called freedom of expression right activist started to show baised intelectuality , but, when other culture/religion/civilization related similar issue is concerned, they started talking abt emotions, secularism etc or keep mum......stop dis hypocricy....

from:
Arya

Posted on: Feb 28, 2014 at 13:36 IST

Unforunately, we in post-Independence India have not cultivated the habit of trying to understand legal issues in the larger historical context of the global upheaval caused over the past 150 to 200 years by unprecedented urbanization, industrialization and militarization. It has become the habit of our "legal experts" to quote American and European thinkers of liberalism from the 18th and 19th century, without bothering to note that those thinkers lived in a very different world. Industrialization and Urbanization was still at a very preliminary stage even in the Western world at that time. Ideas of "sacred" was still very important for "liberal" thinkers and society of that time.

Subsequently, however, "Liberalism" has been steadily distorted with the rise of rapid urbanization and the opportunistic propaganda by shallow urban ideologues (beginning with the Utilitarians and Marxists of the 19th century). Liberalism today has become just another word for "Atheism".

from:
Venkatesh R.

Posted on: Feb 28, 2014 at 12:39 IST

Here I find another pseudo-secular . Lets wait for another 20 years , when population of our 'minorities' will increase by 5 folds , then we will see who sings about 'freedom of speech' ? These pseudo-seculars will be hacked to death day in and day out by our today's minority .These people never learn lesson from history , never learn from our neighbors and never learn from the book "Islam: A Concept of Political World Invasion ". When we have got such idiots as our intellectuals , who can save us ?

from:
anil

Posted on: Feb 28, 2014 at 10:58 IST

This is approximately the 5th op-ed published by The Hindu on free speech and Doniger's book. And all of these articles were condemnatory of the ruling and publisher's stance. This can be called as "moral absolutism" on the grounds that there is not the tiniest effort to figure out what are the litigant's feelings. There is a laughable supposition that Doniger, a non-Indian and a non-Hindu, has first right to freedom of expression that millions of Hindus and Indians do not deserve. Rights cannot be enshrined without duties (the equivalent of responsibilities). And the author needs to be reminded that Doniger made no effort to implead herself in the case or to argue the merits of her book. Perhaps she realises that pulp fiction cannot have literary merits!!!

from:
Srihari

Posted on: Feb 28, 2014 at 10:26 IST

Democracy is utter failure and not suited to India is well known to world.Politicians all these years ruined this country and ruin more if this democracy continues.Once China was behind India in development and now let Suhrith Parthasarthy visit China and see the development which surpassing western countries.It may take more than thousands of years for India to match China if the present type of democracy continues.Who will bell the cat to change this ruling system to one which suitable for India.God alone knows.

from:
V.Balakrishnan

Posted on: Feb 28, 2014 at 10:09 IST

It is surprising to note that The Hindu is carrying almost on a dialy basis articles supporting Wendy Doniger's fictionlike work masquerading as a classic hurting sentiments of Hindus of every denomination of this country. It is very clear that the withdrawal decision was taken in collusion with the writer meant to boost its sale outside India and nothing else! We know how Westerners prone to pornography are eager to read books depicting Hindus Gods and Goddesses in the same brush.

from:
S N Hebbar

Posted on: Feb 28, 2014 at 10:07 IST

The author has very aptly pointed his view on the Majority rule in a democratic setup. It gives a picture of a rule of wolves where a few goats think that they have certain rights as per the law book. True to its core, these all have created a sense of disenchantment that Penguin even dared to go further and quietly took Wendy's book off the selves. Changing times !!!

from:
Divya Prakash

Posted on: Feb 28, 2014 at 09:02 IST

India is a country where people can be manipulated by self serving politicians. Mobs can be incited to rioting quite easily regardless of whether the content is actually inciting. This does not happen in America and for this very reason we cannot extend the American law to the Indian context.

The court/govt may have considered this practicality while making the ruling. Yes, it is a slippery slope to dystopia but it is quite a long way off.

This is also not about majoritarianism. Material on minority communities and religions have also been banned in the past.

For people who really want to read it, there are plenty of means, especially at a time when information has no boundaries.

from:
Vishal Naik

Posted on: Feb 28, 2014 at 09:01 IST

Does the writer mean to say freedom of speech is absolute?Can defamation also be considered as part of free speech?As per Wiki defamation is " the communication of a false statement that harms the reputation of an individual/religion".What Wendy has done is baseless slander/libel which is not same as free speech.

The writer says 'speech that would incite the committing of an offence' is a compelling reason to restrain speech.But if any of religious groups indulge in violence the entire media will be up in arms and call that by various names.Penguin was aware Wendy will go to jail and that is the only reason they decided to withdraw the book.

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